Is a pool more important than a dad?
By Jeffery M. Leving and Glenn Sacks
web posted May 10, 2004
For eight years California courts have permitted children of
divorce to be moved hundreds or thousands of miles away from
the fathers they love and need. Late last month the California
Supreme Court issued an historic opinion which clarifies current
case law and reaffirms the importance of both parents in a child's
life.
Since 1996, move-away determinations have been based on the
Burgess decision, in which a custodial mother was allowed to
move her two children 40 miles away from their father. Burgess
has been disastrous for children because it has been interpreted
by California courts to permit moves of hundreds or thousands
of miles. In some cases, courts have even allowed children to be
moved out of the country, as far away as Australia, New
Zealand, and Zaire.
In LaMusga, a Contra Costa County custodial mother sought to
move to Ohio with her two young boys. The father fought the
move, arguing that moving would be harmful to his children
because it would damage their relationship with him.
The trial court decided in the father's favor. However, the First
District Court of Appeal reversed, declaring that as long as the
move-away is not done in "bad faith," the custodial mother has
the right to move with her children unless the father could prove
that, in the event of a move, awarding him custody was
"essential" to his children's well-being.
In LaMusga, the Supreme Court ruled that "essential" is an
unreasonably high standard and that lower courts have been
misinterpreting Burgess by placing their focus on the custodial
parent's perceived rights instead of on the well-being of children.
The Court wrote:
"The likely impact of the proposed move on the noncustodial
parent's relationship with the children is a relevant factor in
determining whether the move would cause detriment to the
children andůmay be sufficient to justify a change in custody."
During oral arguments the Court appeared concerned about the
distance issue in move-aways, particularly after one of the
mother's attorneys told the Court that while the Burgess case
involved a move within the same county, he believed the
custodial parent's right to move remained the same when applied
to interstate or even international moves. In strengthening the
ability of trial courts to restrain move-aways, the opinion lists
distance among the most prominent factors to be considered.
One reason California move-aways need to be reigned in is the
strong financial incentive for California custodial parents to move.
California has a high child support guideline, a high cost of living,
and high wages. Thus custodial parents can often live better by
moving to other states (or other countries), which have a lower
cost of living, because they will still collect child support awards
based on California wages and support guidelines.
Beyond the harm done to children by separating them from a
loving parent, it is also a terrible injustice to noncustodial parents
who often must stay behind to work to pay child support for
children who have been moved out of their lives. Move-aways
highlight the hypocrisy of the current public policy and discourse
on fatherhood, wherein men are lectured to take responsibility
for their children while at the same time courts and lawmakers
frequently disregard their right to remain a meaningful part of
their children's lives.
At the heart of many move-away decisions is the question "do
fathers matter or not?" Research overwhelmingly demonstrates
that they do: the rates of school dropouts, teenage pregnancy,
juvenile crime, and teen drug abuse are more tightly correlated
with fatherlessness than with any other major socioeconomic
factor, including income and race.
The custodial mother in LaMusga has emphasized the economic
advantages of her move, and newspapers report that she is
happy that the new home she was able to purchase after moving
her children out of state is spacious and has a pool. But is a
bigger house and a pool more important than a father?
Jeffery M. Leving is one of America's most prominent family law
attorneys. He is the author of the book Fathers' Rights: Hard-
hitting and Fair Advice for Every Father Involved in a Custody
Dispute. His website is DadsRights.com. Glenn Sacks is a men's
and fathers' issues columnist and a talk show host on KMPC
AM 1540 in Los Angeles. His columns have appeared in dozens
of America's largest newspapers. Glenn can be reached via his
website, at www.GlennSacks.com or by email at
Glenn@GlennSacks.com. This column first appeared in the San
Francisco Chronicle (5/4/04).
Enter Stage Right -- http://www.enterstageright.com